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Stenholtz v. Saul

United States District Court, E.D. Wisconsin

July 30, 2019

DANA STENHOLTZ, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         PROCEDURAL HISTORY

         Plaintiff Dana Stenholtz alleges that she has been disabled since March 24, 2017, due to “bipolar disorder, anxiety, posttraumatic stress disorder, other mental illness, fibromyalgia, obesity, and diabetes[.]” (Tr. 13, 21.) In March 2017 she applied for supplemental security income benefits. (Tr. 255-63). After her application was denied initially (Tr. 128-43) and upon reconsideration (Tr. 144-59), a hearing was held before an administrative law judge (ALJ) on March 20, 2018 (Tr. 43-81). On May 15, 2018, the ALJ issued a written decision concluding Stenholtz was not disabled. (Tr. 13-34.) The Appeals Council denied Stenholtz's request for review on July 10, 2018. (Tr. 1-3.) This action followed. All parties have consented to the full jurisdiction of a magistrate judge (ECF Nos. 4, 7), and this matter is now ready for resolution.

         ALJ'S DECISION

         In determining whether a person is disabled an ALJ applies a five-step sequential evaluation process. At step one, the ALJ determines whether the claimant has engaged in substantial gainful activity. The ALJ found that Stenholtz “has not engaged in substantial gainful activity since March 24, 2017, the application date[.]” (Tr. 15.)

         The analysis then proceeds to the second step, which is a consideration of whether the claimant has a medically determinable impairment or combination of impairments that is “severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1522(a). The ALJ concluded that Stenholtz has the following severe impairments: “fibromyalgia, obesity, bipolar disorder/depression, and anxiety disorders (including generalized anxiety disorder and posttraumatic stress disorder)[.]” (Tr. 16.)

         At step three the ALJ is to determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of the impairments listed in 20 C.F.R. Part 4, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.1526, 416.920(d), and 416.926) (called “The Listings”). If the impairment or impairments meets or medically equals the criteria of a listing and also meets the twelve- month duration requirement, 20 C.F.R. § 416.909, the claimant is disabled. If the claimant's impairment or impairments is not of a severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds to the next step. The ALJ found that Stenholtz “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]” (Tr. 18.)

         In between steps three and four the ALJ must determine the claimant's residual functional capacity (RFC), “which is [the claimant's] ‘ability to do physical and mental work activities on a regular basis despite limitations from her impairments.'” Ghiselli v. Colvin, 837 F.3d 771, 774 (7th Cir. 2016) (quoting Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014)). In making the RFC finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1529, 416.929; SSR 96-4p. In other words, the RFC determination is a “function by function” assessment of the claimant's maximum work capability. Elder v. Astrue, 529 F.3d 408, 412 (7th Cir. 2008). The ALJ concluded that Stenholtz has the RFC

to perform sedentary work as defined in 20 CFR 416.967(a) except she could lift/carry 20 pounds occasionally and ten pounds frequently and she is limited to simple, routine and repetitive tasks, with no fast-paced work, only simple work-related decisions, occasional work place changes, and occasional interaction with the public.

(Tr. 20-21.)

         After determining the claimant's RFC, the ALJ at step four must determine whether the claimant has the RFC to perform the requirements of her past relevant work. 20 C.F.R. §§ 404.1526, 416.965. Stenholtz's past relevant work was as an instructor and administrative assistant. (Tr. 33.) The ALJ concluded that Stenholtz “is unable to perform any past relevant work[.]” (Id.)

         The last step of the sequential evaluation process requires the ALJ to determine whether the claimant is able to do any other work, considering her RFC, age, education, and work experience. At this step the ALJ concluded that, “considering [Stenholtz's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [she] can perform.” (Tr. 33.) In reaching that conclusion, the ALJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Stenholtz's age, education, work experience, and RFC could perform the requirements of occupations such as a document preparer and sorter. (Tr. 34.) After finding that Stenholtz could perform work in the national economy, the ALJ concluded that she was not disabled. (Id.)

         STANDARD OF REVIEW

         The court's role in reviewing an ALJ's decision is limited. It must “uphold an ALJ's final decision if the correct legal standards were applied and supported with substantial evidence.” LD.R. by Wagner v. Berryhill, 920 F.3d 1146, 1152 (7th Cir. 2019) (citing 42 U.S.C. § 405(g)); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017) (quoting Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)). “The court is not to ‘reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment for that of the Commissioner.'” Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)). “Where substantial evidence supports the ALJ's disability determination, [the court] must affirm the [ALJ's] decision even if ‘reasonable minds could differ concerning whether [the claimant] is disabled.'” L.D.R. by Wagner, 920 F.3d at 1152 (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).

         ANALYSIS

         Stenholtz argues that the ALJ erred (1) in evaluating her statements concerning the intensity, persistence, and limiting effects of her symptoms; and (2) in evaluating and giving little weight to the opinions of Lauren Bremberger, M.D., Carmen Kosicek, NP, and Arriann Tauer, MS, LPC. (ECF No. 12.)

         I. Symptom Evaluation

         In making his RFC determination, the ALJ must engage in a two-step process to evaluate a claimant's symptoms. First, the ALJ “must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms, such as pain.” SSR 16-3p, 2017 WL 5180304 at *3; see also 20 C.F.R. § 416.929. “Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms is established, [the ALJ] evaluate[s] the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities….” SSR 16-3p, 2017 WL 5180304 at *3. The ALJ's evaluation of a claimant's symptoms is entitled to “special deference” and will not be overturned unless it is “patently wrong.” Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (citing Eichstadt v. Astrue, 534 F.3d 663, 667-68 (7th Cir. 2008)).

         After considering the evidence in the record, the ALJ found that “the medical evidence documented [Stenholtz's] fibromyalgia, obesity, bipolar disorder/depression, generalized anxiety disorder, and posttraumatic stress disorder.” (Tr. 25.) However, “[a]s for [Stenholtz's] statements about the intensity, persistence, and limiting effects of her symptoms, [the ALJ found that] they are inconsistent with the evidence as a whole.” (Id.) The ALJ explained:

Although she was obese with fibromyalgia, the medical evidence showed that she still exhibited reasonably good physical function during a number of examinations throughout the period at issue. She has exhibited abnormalities such as tender points but also full muscle strength, intact sensation, and a gait within normal limits. While participating in physical therapy, she was able to increase her physical abilities and tolerate the exercises reasonably well. Although she had mental impairments with various symptoms (such as depressed mood, feelings of anxiety, and irritability), the treatment records showed that she still exhibited reasonably good mental function during examinations. Among other things, the progress notes showed that she exhibited a cooperative and friendly attitude, appropriate affect, intact and adequate concentration, intact memory, average fund of knowledge, and no hallucinations or delusions. She indicated that psychiatric medication and therapy were helpful. She did not undergo any impatient mental health treatment during the period at issue.

(Id.) (Internal citations omitted.) As such, the ALJ did not accept Stenholtz's testimony that her impairments are work preclusive.

         A. Fibromyalgia

         Stenholtz contends that the ALJ improperly evaluated her statements concerning the intensity, persistence, and limiting effects of her fibromyalgia. (ECF No. 13 at 12-13.)

         Stenholtz reported significant physical problems due to fibromyalgia, including constant pain all over the body. (Tr. 21.) (Citing Tr. 978.) “She described the pain as ‘burning, sharp, aching, throbbing, shooting and tingling.” (Id.) (Citing Tr. 978.) “She asserted that prolonged activity such as sitting, standing, or walking made the pain worse.” (Tr. 21-22.) (Citing Tr. 978.)

         The ALJ found Stenholtz's statements concerning her fibromyalgia to be inconsistent with “the treatment records [that] showed that she exhibited reasonably good function during a number of examinations throughout the period at issue.” (Tr. 22.)

In May 2017, [Stenholtz] attended an appointment with Dr. David Tylicki, a pain and rehabilitation specialist, due to complaints of fibromyalgia. Dr. Tylicki stated that [Stenholtz] had several abnormalities upon examination including more than 13 tender points above and below the waist, a positive seated slump test on the right side, a positive straight leg raise on the right side, and pain and tenderness in the right foot. However, Dr. Tylicki further observed that [Stenholtz] exhibited five out of five muscle strength in the lower extremities, intact sensation to light touch in the lower extremities, symmetrical reflexes, and no dynamic weakness with ambulation. Dr. Tylicki advised that [Stenholtz] should take medication for fibromyalgia and attend physical therapy for spine problems and tendinitis. [Stenholtz] did not feel that Dr. Tylicki was helpful.
In July 2017, [Stenholtz] presented before a rheumatologist, Dr. Carly Skamra, with complaints of pain. Dr. Skamra observed that [Stenholtz] had 18 out of 18 tender points but an otherwise unremarkable examination during which she appeared well with no edema of the extremities, symmetrical reflexes, normal muscle strength, and no synovitis of the joints. Dr. Skamra concluded that [Stenholtz] would be better served by a comprehensive pain management program.
In August 2017, [Stenholtz] attended an evaluation with Dr. Yechiel Kleen, a pain and rehabilitation specialist, due to her complaints of chronic pain. At the time of evaluation, [Stenholtz] primarily took the medication Tylenol for pain. Upon examination, Dr. Kleen observed that [Stenholtz] was alert and oriented with no acute distress, full strength in all extremities, intact sensation in all extremities, positive straight leg raising that was due to body habitus rather than true deficit, the ability to stand on the heels and toes with some difficulty, morbid obesity, no muscle atrophy, and a gait within normal limits. Dr. Kleen believed that [Stenholtz] had chronic pain syndrome, fibromyalgia, physical deconditioning, sleep difficulties, and morbid obesity. Dr. Kleen suggested that [Stenholtz's] anti-depressant medications be increased to help control pain, she should attend physical therapy, and she should complete independent water therapy.
[Stenholtz] attended physical therapy with aquatic therapy during which she reported that she was surprised how well things were going. She tolerated the exercises reasonably well and was progressing toward her goals. As of October 2017, she met several goals including demonstrating independence with the home exercise program, ambulating up to 30 minutes on a level surface with a safe gait pattern, and a decreased score on the patient specific functional sale. She also confirmed that she had the abilities to walk in the grocery store and community for 30 minutes with increased ease and less fatigue as well as stand for 20 minutes or greater in church. She was advised to continue with independent strengthening in the pool for two to three days each week in order to increase strength and maintain functional activity tolerances. At the hearing, however, she testified that she stopped the water exercise because she no longer felt that she had the ability to drive due to anxiety.

(Tr. 22-23.) (Internal citations omitted.)

         However, the Court of Appeals for the Seventh Circuit has recognized that “[t]he extent of fibromyalgia pain cannot be measured with objective tests aside from a trigger-point assessment.” Gerstner v. Berryhill, 879 F.3d 257, 264 (7th Cir. 2018) (citing Vanprooven v. Berryhill, 864 F.3d 567 (7th Cir. 2017)); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (“[I]t is difficult to determine the severity of [fibromyalgia] because of the unavailability of objective clinical tests.”); (see Tr. 22 (“Dr. Tylici stated that [Stenholtz] had several abnormalities upon examination including more than 13 tender points above and below the waist…. Dr. Skamra observed that [Stenholtz] had 18 out of 18 tender points ….).)

         As such, Stenholtz's “relatively good function” during examination (i.e., normal muscle strength, normal gait, symmetrical reflexes, intact sensation, and no edema) is not substantial evidence that her fibromyalgia is not disabling. See Sarchet, 78 F.3d at 307 (“Since swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advance.”); Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (“What is unusual about [fibromyalgia] is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal. Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling. …. There are no laboratory tests to confirm the diagnosis.”) (internal quotations, citations, and alterations omitted).

         Since the ALJ misstated the evidence about the manner in which Stenholtz's fibromyalgia affected her ability to perform full-time work, remand is necessary. On remand, the ALJ shall reevaluate Stenholtz's statements concerning the intensity, persistence, and limiting effects of her fibromyalgia in light of the relevant evidence in the record.

         B. Bipolar Disorder

         Stenholtz also argues that the ALJ improperly evaluated her statements concerning the intensity, persistence, and limiting effects of her bipolar disorder. (ECF No. 12 at 6-12, 14-16.)

         Stenholtz “reported various mental health symptoms including a depressed mood, feelings of helplessness or hopelessness, feelings of anxiety, anger outbursts, decreased energy, irritability, panic attacks, passive suicidal ideation, a history of manic episodes, ‘trauma flashes,' and low self-esteem.” (Tr. 23.) She testified at the March 2018 hearing before the ALJ:

Q The most common diagnosis I see is bipolar I disorder. For some people that implies you have periods of being sad and other periods being manic. Would that be a fair ...

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